Today early morning Afzal Guru was hanged by
India to satisfy a ‘collective conscience’ of a nation, ‘conscience’ of the
same state that stands accused of colossal war crimes in #Kashmir without any
recourse to justice ever. Today again Indian political parties shall be seizing
this opportunity in measuring ‘my nationalism’ v/s ‘your nationalism’ and Indian
electorate will be drilled to ‘nationalist rhetoric’ on this blood. Not missing
the point that this ‘collective conscience’ was used appropriately by Congress
just in time for electoral gains and to fox the BJP in winning some more ‘nationalist
medals’ over the opposition. But did Afzal really deserve to die? Did Afzal
Guru’s case fall in the ‘rarest of rare’ category and did his crime really equal
his sentence?

Even before the judicial trial of Afzal Guru had
started, the trail by media had been forced upon him, right after his arrest. A
handcuffed Afzal in the office of Delhi police special cell was presented
before national media to put through his ‘confession’ of crime. This created a
mindset across the country which had now decided that he was the main culprit
and started baying for his blood; a fair trial was now seemingly impossible. Ironically
Afzal did not have any lawyer from the moment of his arrest (from the date of
his arrest on 15th Dec 2001 to the filing
of the charge sheet on 14th May 2005) and had no idea of the consequences of his
statements (statements in lockups and under extreme torture are often not
voluntary but under duress and fear). This trial by media not only created
pressures on the judicial trial by whipping extreme sentiments against the
accused across the county but also affected the psychological state of Afzal
himself. In the trial court also Afzal did not have access to a lawyer; he requested for competent advocates and
suggested four names. The trial court judge after enquiring from two of the
advocates present in the court (who declined) did not pursue the enquiry any
further. A lawyer then appointed by the court to Afzal withdrew soon; the trial
of Afzal proceeded without a defence lawyer. In the absence of any defence for
Afzal, there was no competent cross examination against witness, prosecution
testimony, seizure memos or proof presented in the court. In such a scenario
how could the trail ever be balanced and fair?

Not only was the fear (and prejudice) in
representing Afzal evident, in the case of other accused also reprisals from extreme
elements were visible. Right winged hooligans attacked the office of Ram
Jethmalani when he had offered to represent the other accused SAR Geelani (who did
get defence later and was acquitted). The case against Afzal moved across levels
and ultimately to Supreme Court. The first defense lawyer withdrew midway
citing ‘engagement by another accused’. The second amicus appointed was
protested against by Afzal, who submitted a list of four senior advocates to
defend him. In spite of Afzals protests, the amicus continued, since nobody was
ready to take his defense case. The amicus appointed for Afzal was known not to
have paid even a single visit to his client, not even cross-examining properly
the witnesses or proof in the case; defence relegated to a cold formality.

In its August 2005 judgment the Honorable Court
admitted that “The conviction under section 3 (5) of POTA is also set aside
because there is no evidence that he is a member of a terrorist organisation,
once the confessional statement is excluded. Incidentally, we may mention that
even going by confessional statement, it is doubtful whether the membership of
a terrorist gang or organisation is established.” But the court also concluded “The
incident, which resulted in heavy casualties, had shaken the entire nation and
the collective conscience of the society will only be satisfied if capital
punishment is awarded to the offender.”

Death sentence to satisfy the ‘collective
conscience of the society”? That ‘collective conscience’ of the same society
had already been determined and molded by the initial media trial conducted on
Afzal and the following political opportunism, where a hysteria had been
whipped to a crescendo and Afzal had been pronounced guilty even before the
judicial trial had begun. Lest we forget that Afzal was not even present in New
Delhi when this attack on the parliament happened and he surely was not among
the gunmen. Afzal is accused only of being a cog in the wheel; he was not at
the crime scene, did not fire any shots and is not even accused to be the
mastermind. All evidence against Afzal
was circumstantial which surely did not make it as a ‘rarest of rare cases’.
His phone number in the mobile phones found on one of the dead militants became
the police passage to him. But Afzals mobile also has telephone numbers of STF
personnel with whom he had been interacting (and working) earlier (fact which
he pointed in a letter written to his Supreme Court defence lawyer), an angle
not taken into investigation.

The trial on the basis of circumstantial
evidence and in the absence of enough opportunity given to Afzal to defend his
case should be seen as an effort to sacrifice Afzal in order to satisfy a national
urge for case results. Having none to punish would have been seen across the
country as an insult to those who have laid their lives for defending the
Indian Parliament, and also a political weakness of the govt.

Political parties were also actively leading the
‘hang him’ cry to better their own vote banks. While BJP was keen to project
itself as being more nationalist than others, it was also eyeing this
opportunity to wash off the stains of its Kandahar bargain. The Congress not
wanting to be seen any less nationalist than BJP; hence Afzals bloodletting was
used by them on the altar of electoral politics as sacrificial blood that would
fetch them power again. The Congress also feeling jittery with the resurgence
of Modi on the national platform, seen as dwarfing Congress chances in the next
election, used the Afzal card just in time to counter BJP. After this hanging
it will be surely difficult for BJP to counter Congress as a ‘weak govt’ and
this bloody stroke by Congress has surely put BJP in a tight spot; human lives are
damned.

In India there seem to be two systems in place; one
for the majority and the other for the minority. And if you happen to be a
Kashmiri Muslim, then no systems shall work for you and guilty till not proven
innocent will be the norm. A country where Dara Singh (accused of burning alive
Graham Staines and his two children in Orissa) had his death sentence commuted
to life imprisonment, where Maya Kodnani (accused in 2002 Naroda Patiya, Gujarat)
massacre was spared the death sentence, a circumstantial evidence decides
gallows for a Kashmiri Muslim, Afzal.

Afzals hanging should not only have been opposed
because it was likely to add fuel to the conflict in Kashmir, more young men
visualizing confrontation as the only way out, having understood the futility
of Indian justice systems for them.
Afzals hanging should have been opposed because he was befit of fair
representation in the trail and because the same systems of justice and
investigation were not (and are not) available to Afzal (like many Kashmiris)
as are to other Indians. Afzals became a victim of state apathy and Indian indifference
to Kashmir; a surrendered militant who had shunned violence and was used by the
brutal state systems as a sacrificial goat.

Kashmiris for long having been at the receiving
end of the Indian iron fist, have lost hope from Indian judicial systems not
once but many times. Thousands of crimes like Machil, Pathribal, Kunanposhpora,
Gawkadal, Hawal, Zakura, Bijebehada, Kupwara, Sopore (massacres) have been denied
justice for decades now. India that often talks of magnanimity even fails in
offering basic justice for Kashmir; for it has for long been seen as treating
Kashmiris with malice yet at the same time wondering about reasons of the ever widening
divide.

After Afzals hanging, Kashmir will be barricaded
by the state with all means of normal life and communication shut by boots, barrels
and iron fists. With Afzal silenced, Kashmiris will speak up again, for the
countless injustices done to them at the hands of imperialism, for the denial
of human dignity towards them. While India will be patting its back on the
hanging of a Kashmiri and Indian media celebrating this bloodletting, they will
pretend blind to the fires India is fueling in Kashmir and to the point of no
return that it has pushed Kashmir to. What will be more shameful for India is that,
Afzal in all likelihood will be buried in Tihar, denying him even a decent
burial in his land. This burial will also bury all hopes for India in Kashmir
(if there were any) with the common Kashmiris, more than ever before, realizing
the futility of Indian democracy.